Groundless private prosecutions must stop, says Cheng

Top News | Amy Nip 17 Jun 2020

Secretary for Justice Teresa Cheng Yeuk-wah says it is her duty to intervene and stop private prosecutions that run against public interest or those brought by improper motives.

"Private prosecutions which are groundless or frivolous or brought out of improper motives or political considerations should not be condoned," she wrote on her blog after the Eastern Magistrates' Court gave the green light to a private prosecution case involving a traffic cop who shot a young protester in Sai Wan Ho.

Claiming she was not commenting on any individual case, Cheng said the Department of Justice in principle has the right to intervene under the law.

Under the common law system, a person who files a private prosecution case is responsible for gathering evidence.

If a magistrate decides there is a case to answer for the defendant based on the evidence, he can summon the person to the court.

Cheng said her department is entitled to intervene in the private prosecution once a summons is issued.

It may prevent the prosecution from continuing by withdrawing the summons or declining to sign the charge sheet or indictment.

"In short, the secretary for justice can intervene to withdraw the charge, to apply for a permanent stay of proceedings or to offer no evidence against the defendant," she said.

The Department of Justice has an obligation to intervene and discontinue a private prosecution which is considered to have no reasonable prospect of conviction, contrary to the public interest, brought out of improper motives or constitute an abuse of process.

Alternatively, the department can allow the private prosecution to continue or take over the case and continue the prosecution itself.

If the trial continues and the private prosecutor is not able to prove the defendant guilty, then the defendant will not be prosecuted again in light of the principle against double jeopardy.

Cheng cautioned that bringing a private prosecution in haste is not always advantageous and may lead to extremely unfair results.

The private prosecutor may be liable to pay costs to the defendant and may even be sued for compensation.

Democrat Ted Hui Chi-fung received the go-ahead last week for his private prosecution against the traffic cop who allegedly shot a 22-year-old student in the stomach - the first policeman to end up in court over the anti-fugitive bill unrest.

Hui said yesterday Cheng wrote at length about her right to intervene in private prosecution cases and the consequences of people abusing the mechanism.

"On the contrary, she failed to spell out how private prosecutions can protect civil rights," he said.

"It shows the government is against citizens launching such cases. Her blog shows the way for future intervention in police abuse cases."

People Power's Raymond Chan Chi-chuen also launched a private prosecution against Federation of Trade Unions lawmaker Kwok Wai-keung, accusing him of common assault in the Legislative Council building during a House Committee meeting on May 8.

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